Judge: Frank M. Tavelman, Case: 22BBCV00663, Date: 2023-04-21 Tentative Ruling

Case Number: 22BBCV00663    Hearing Date: April 21, 2023    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

DEMURRER

ALLEGATIONS: 

Dawn M.(“Plaintiff”) brings this action against Cri-Help, Inc. (“Defendant”) related to their employee, “John”, who she alleges sexually assaulted her while she was a resident at Defendant’s rehabilitation facility. On September 16, 2022, Plaintiff filed her Complaint. The Complaint contained causes of action for (1) Negligence, (2) Sexual Harassment under Civil Code §51.9, (3) Sexual Battery, and (4) Intentional Infliction of Emotional Distress.

On October 31, 2022, Defendant filed a demurrer to the first and second causes of action in the Complaint. On December 2, 2022, hearing was held on the demurrer. The Court sustained the demurrer to both the first and second causes of action with leave to amend.

On December 20, 2022, Plaintiff filed her First Amended Complaint (FAC). The FAC contains the same causes of action as the Complaint. Defendant again demurs to the first and second causes of action.

HISTORY: 

On January 30, 2023, Defendant filed their demurrer to the FAC. On April 10, 2023, Plaintiff filed her opposition. On April 14, 2023, Defendant filed their reply.

ANALYSIS: 

I.                LEGAL STANDARD 

The grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters.  (C.C.P. § 430.30(a); Blank v. Kirwan (1985) 39 Cal. 3d 311, 318.) A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) The only issue involved in a demurrer hearing is whether the complaint states a cause of action. (Ibid.)

A demurrer assumes the truth of all factual, material allegations properly pled in the challenged pleading. (Blank v. Kirwan, supra, 39 Cal. 3d at p. 318.) No matter how unlikely or improbable, the plaintiff’s allegations must be accepted as true for the purpose of ruling on the demurrer. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.  App. 3d 593, 604.) But this does not include contentions; deductions; conclusions of fact or law alleged in the complaint; facts impossible in law; or allegations contrary to facts of which a court may take judicial notice.  (Blank, supra, 39 Cal. 3d at p. 318.)

Pursuant to C.C.P. §§ 430.10(e) and (f), the party against whom a complaint has been filed may demur to the pleading on the grounds that the pleading does not state facts sufficient to constitute a cause of action, or that the pleading is uncertain, ambiguous and/or unintelligible. It is an abuse of discretion to sustain a demurrer without leave to amend if there is a reasonable probability that the defect can be cured by amendment. (Schifando v. City of Los Angeles (2003) 31 Cal. 4th 1074, 1082.)

II.              MERITS

Negligence (First COA) - Overruled

The Court previously sustained a demurrer to this cause of action. In so ruling, the Court found vicarious liability under respondeat superior applied to Plaintiff’s allegations. The Court found Plaintiff failed to allege sufficient facts that John’s conduct fell within the course and scope of his employment. (See Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291.) As such, Plaintiff’s allegations were insufficient to support a theory of respondeat superior.

The Complaint contained allegations only that John was unfit and incompetent to perform his duties. The Court found these allegations insufficient. Plaintiff now alleges that John was employed as a tech with Defendant and his duties included supervising and observing clients, documenting client activities and conditions, and ensuring a clean and safe environment is maintained. (FAC ¶ 11.) Defendant argues these additional allegations remain insufficient to show John’s conduct falls within the course and scope of his employment.

In Lisa M. the California Supreme Court held a sexual assault committed by an ultrasound technician to not be within the scope of that technician’s employment with defendant hospital. (Lisa M. supra, 12 Cal.4th 291, at 302.)  The Court reasoned the technician taking advantage of his solitude with plaintiff to sexually assault her was not motivated or triggered by anything in his employment activity. (Id.) That is to say, the employee’s motivations were not causally attributable to his employment as an ultrasound technician. (Id.) Defendant argues John’s motivations are similarly unrelated to his employment. Defendant argues there is nothing within John’s alleged duties as a tech for Defendant related to his assault of Plaintiff.

The Court finds Plaintiff has added factual allegations which support a theory of respondeat superior. An employee's conduct falls within the scope of his employment and is thus a causal nexus if the conduct either: (1) is required by or incidental to the employee's duties; or (2) it is reasonably foreseeable in light of the employer's business. (Bailey v. Filco, Inc. (1996) 48 Cal.App.4th 1552, 1559.) Plaintiff alleges Defendant failed to create, implement, or enforce policies that would supervise staff and ensure employees do not enter the rooms of clients of the opposite gender alone. (FAC ¶ 22.) Plaintiff alleges the failure to create, implement enforce such policies created a foreseeable risk that male employees would assault vulnerable female employees. (FAC ¶ 20, 21.) In addition, Plaintiff alleges there was another sexual assault at Defendant’s facility which further served to create a foreseeable risk. (FAC ¶ 17.) These allegations, combined with the allegation that John was directly responsible for the supervision of residents of the facility combined are sufficient to allege John’s behavior was reasonably foreseeable to Defendant.

The primary case Defendant relies upon in its demurrer is Lisa M. While instructive in legal principle, the Court finds Lisa M. to be procedurally inapposite. Lisa M concerned a legal determination of respondeat superior on a motion for summary judgment. The Court in Lisa M. noted that respondeat superior is usually a determination of fact, but can be decided as a matter of law where facts are undisputed. (Lisa M. supra, 12 Cal.4th 291. at 300.) The Court in Lisa M. was deciding whether the uncontested facts shown by the parties meant the ultrasound technician’s behavior was within the course and scope of his employment. Here, Plaintiff is not required to make such a showing on demurrer. Plaintiff must only allege sufficient facts to support her theory of respondeat superior. The Court finds she has done so. Whether Plaintiff will be able to eventually evidence these facts remains to be seen, but Plaintiff has met her burden on demurrer.

As such, the Court OVERRULES the Demurrer to the first cause of action.

Plaintiff also alleges negligence under a theory of negligent supervision.

“[A]n employer can be liable to a third person for negligently hiring, supervising, or retaining an unfit employee.” (Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1054.) A cause of action for negligent hiring requires the following elements: (1) employer’s hiring an employee; (2) who is incompetent or unfit; (3) employer had reason to believe undue risk of harm would exist because of the employment; and (4) the harm occurs. (Federico v. Superior Court (1997) 59 Cal. App. 4th 1207, 1213-1214.)

At issue here is whether Defendant had reason to believe John posed a threat of undue harm. Plaintiff alleges John openly flirted with Plaintiff, which should have put Defendant on notice of the need to keep John from assaulting Plaintiff. (FAC ¶12.) Defendant argues the Complaint does not state whether this flirting was ever reported to anyone of authority at the facility or was done in the presence of anyone with authority. Defendant further argues Plaintiff does not specify what steps Defendant did or did not take that obviated their duty.

Plaintiff argues her allegation of John’s flirting is sufficient to allege negligent supervision. The FAC states:

During the course of Plaintiff’s treatment, John began openly flirting and making sexual advances to Plaintiff in violation of known CRI-HELP policy and applicable statutes, codes, regulations and ethics of a drug rehabilitation facility, including California Code of Regulations Title IX §10564.

(FAC ¶ 12.)

Plaintiff argues this allegation is sufficient because on demurrer Plaintiff is not required to state facts which would form part of Plaintiff’s proof.

The Court previously sustained a demurrer because Plaintiff did not allege facts that Defendant was on notice of John’s behavior. The Court finds Plaintiff’s allegations remain insufficient to support her cause of action. Plaintiff only alleges that John’s flirting was open, not that any of Defendant’s employees were privy to this flirtation. Plaintiff does not allege this flirtation occurred in the presence of anyone who could impute knowledge to Defendant for purposes of negligent supervision. Plaintiff may be able to allege facts to this effect, but she has not done so here.

Further, Plaintiff fails to allege facts that anyone with direct supervisory authority over John was privy to his flirting and sexual advances. “To establish negligent supervision, a plaintiff must show that a person in a supervisorial position over the actor had prior knowledge of the actor's propensity to do the bad act.” (Z.V. v. County of Riverside (2015) 238 Cal.App.4th 889, 902.) In the absence of an allegation this flirting took place in presence of employees, Plaintiff has failed to establish such prior knowledge.

Sexual Harassment under Civil Code §51.9 (Second COA) - Overruled

The Court previously sustained demurrer to this cause of action because Plaintiff had not alleged facts that Defendant ratified John’s conduct.  To satisfy Civil Code §51.9, there must be a showing of ratification by the employer of the employee’s actions to hold employer liable. (C.R. v. Tenet Healthcare Corp. (2009) 169 Cal.App.4th 1094, 1111.) The Court found the allegations of John’s open flirting were insufficient to show Defendant had knowledge sufficient of John’s conduct.   “Ratification may occur when an employer learns of misconduct and fails to discharge an agent or employee.” (Id.)

Plaintiff’s allegations remain mostly unchanged in the FAC. While Plaintiff added factual allegations as to Defendant’s failure to implement gender separation policies, the allegations about John’s flirting are unchanged.

Plaintiff argues ratification can occur not only when defendant has knowledge of an employees conduct, but also when they have had adequate opportunity to learn of the conduct. (Oppo. pg. 9.) The case which Plaintiff relies upon for this contention is Murillo v. Rite Stuff Foods, Inc. (1998) 65 Cal.App.4th 833. Murrillo, in turn, takes this premise from McChristian v. Popkin (1946) 75 Cal.App.2d 249. In McChristian, the court held a theatre owner who had been told of an employee’s misconduct, but refused to investigate the veracity of the claims could be held vicariously liable. (McChristian supra, 75 Cal.App.2d 249, at 257.) The Court finds the “opportunity to learn of the alleged misconduct” in McChristian meant the employer’s failure to investigate, not simply the opportunity to learn of misconduct in the abstract.                                                           

Plaintiff’s allegations remain insufficient to allege Defendant had the prior knowledge required for ratification. However, a cause of action for sexual harassment can be sustained on other grounds. The court in Tenant Healthcare stated, “As an alternate theory to respondeat superior, an employer may be liable for an employee's act where the employer either authorized the tortious act or subsequently ratified an originally unauthorized tort.” (Tenant Healthcare supra, 169 Cal.App.4th 1094, at 1110.) This statement indicates that a cause of action for sexual harassment may be sustained on grounds of respondeat superior, as well as ratification. As discussed above, the Court finds Plaintiff has alleged sufficient facts with respect to liability under respondeat superior. As such, the Court OVERRULES the Demurrer to the second cause of action.

III.            CONCLUSION

While Plaintiff’s theories of negligent supervision and ratification remain insufficiently pled, the Court finds she has adequately pled vicarious liability under respondeat superior. As such, the Court OVERRULES the demurrer to both the first and second causes of action.

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records. 

ORDER 

Cri-Help, Inc.’s Demurrer came on regularly for hearing on April 21, 2023, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows: 

THE DEMURRER IS OVERRULED. 

IT IS SO ORDERED. 

DATE:  April 21, 2023                            _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles